Address of Louise Arbour, UN High Commissioner
for Human Rights

Chatham House and the British Institute of International and Comparative Law

15 February 2006

In Our Name and On Our Behalf

Transcript of discussion:

Question period

Question:

What do you think about amending Article 15 of the European Convention on Human Rights to exempt Article 5, right to liberty or Article 6 Right to fair trial and Article 14, discrimination, from derogation of these rights in a state of emergency?

Louise Arbour’s response:

The problem with states of emergencies are the interminable duration of these emergencies. However, in a genuine and publicly proclaimed state of emergency, there can be derogations to fair trial rights and detention rights.

There is a need to curtail resort to exceptional measures for emergency and be strict on non-derogable protections.

However, the High Commissioner agreed that she could not see the reason for any derogation to allow for discrimination but on fair trial rights she might be more prudent.

Question:

Do you think that due process should be followed by the United Nations in depriving people of assets who are on the Counter –Terrorism Committee list? Also what process should be followed with respect to renditions?

Louise Arbour’s response

The whole question of orders emanating from the Security Council with respect to confiscation of assets needs to be examined as it appears to be an interference with property rights. Some attention should be paid to examining this.

As to Detainees need to assure that rendition is not an attempt to bypass refugee rights as rendition is designed to go around non-refoulement obligations.

We need to advocate the Optional Protocol forthe Convention against Torture so systematic measures are put in place, so that a state couldn’t transfer under bilateral arrangements, so that there is not a real or hypothetical risk of torture. This is so the practice of rendition is eradicated, rather than all these mechanisms to go around the Refugee or Torture Conventions.

Question:

What information exists for support by the European governments for renditions.

Louise Arbour’s response:

I don’t have the answer, that’s why I’m here to put in public domain. Those who vote are entitled to know what actions their governments are taking with respect to renditions. The government cannot expect support for their initiatives unless the public has access to enough information. In a democracy we are entitled to this information.

Question:

Do you think the Security Council has the power under the UN Charter to createmechanisms that would trump Human Rights obligations?

Louise Arbour’s response

I cannot begin to respond to such a complex problem.

Question:

Do you agree that GuantanamoBayshould be closed down?

Louise Arbour’s response

I sat with Former President Jimmy Carter at the CarterCenter at a seminar he was giving in which he called for closure of Guantanamo. There is also a report jointly by four special Rapporteurs:the Chairman of the Working Gourp on Arbitrary Detention; the Special Rapporteur on the Independence of judges and lawyers; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; the Special Rapporteur on freedom of religion or belief and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. They all attempted to gain access to GuantanamoBay but after negotiation with the United States they were not given access to private contact with prisoners and therefore they refused to attend. They prepared their report with other information obtained by interview with former detainees and responses from lawyers acting for detainees. Although the report reflects the personal views of the special Rapporteurs I share many of the concerns and their conclusions echo a lot of what I am concluding. I was more optimistic a few years ago about judicial oversight but this is not happening.

Question:

Louise Arbour’s response:

E Conv on HR’s has provision – these rights don’t apply

  • Do you think any case that can be made outside the E Conv for saying the normal HR without depriving others of Human Rights
  • Analogy - prohibition of evidence of torture in crts – admissable against the torture
  • Problem in the provision already at the end of the enforcement
  • In a normative framework we don’t know if that person is depriving of their right
  • Packard put in well – presumption of innocence never meant to be prediction of ===but direction for officials of how to proceed
  • So question to deprive of HR - process has to be governed by HR’s principles, even after breached, correctional system
  • Body of law that contains…. to those that are demonstrative, they deserve protection of what is left of them – their human dignity

Question:

Issue of reassurances of extradition to countries i.e. in North Africa agreeing not to practice torture.

Louise Arbour

I understand that the British government is exploring bilateral agreements as are many countires in order to send people back to their original country. This initiative came after the Swedish case in the Committee Against Torture which was quite critical of the monitoring situation as it took the Swedish Ambassador in Egypt one month to visit the prisoner. My understanding is that the British government is obtaining diplomatic assurance.I’ve expressed my skepticism,short of continuous surveillance, 24 hr of monitoring of the detainee – that is the only mechanism that would alleviate the risk of torture. If we use a definition of torture where the threshold is so high, grave interference with integrity suspect might be able to detect that – harder with psychological interference.

Question:

Based on traveling to China and viewing human rights prisoners of the regime especially the Falun Gong is there, practically speaking what more can be done within Europe to deal with Chinese situation.

Louise Arbour’s response

This question goes to heart of international humanitarian and human rights law.

Most people say criminal law is the most robust, capable of enforcement because of the backing of the state. Yes in reality criminal law is a lot less about coercion than consensus.

Human rights has a lot more to do with the social norms of common values, allows us to explore areas in whether or not we have social consensus. Law is fundamentally about developing consensus, less about constraint than about liberties. Vehicle to which you create a form to develop larger and larger consensus. Whether strategy to come into this realm of freedoms and liberties rather than to complain against those who don’t. It can be difficult for example the Special Rapporteur has to be invited into Chine.

Question:

What is the threshold of crimes against humanity with 3000 people being held without trials, can the International Criminal Court investigate crimes against humanity for detainees.

Louise Arbour’s response

She indicated that she faced this question when she was a prosecutor for the ICTY. What was the question is it widespread and systematic or widespread or systematic. This is a very difficult question to answer as it depends on the evidence.

Question:

What do you want us to do about all this?

Louise Arbour’s response

The responsibility is to ask the questions to government. The government should be required to tell us what are the security arrangements particularly with reference to rendition flights and they should not be able to rely on secrecy.

Louise Arbour’s Final observation:

We are asked, you are asked, constantly asked to guide our government or be guided by them, the appropriate balance between the need for security and need for liberty. The question should not be how much of my liberty am I prepared to sacrifice for my security but how much of other’s liberty am I prepared to sacrifice for my security.